HERE COMES THE JUDGE: LIBYAN JUDGES RESPOND POSITIVELY TO AMERICAN JUDGE'S WORKSHOP ON ARBITRATION

C O N F I D E N T I A L SECTION 01 OF 02 TRIPOLI 000485



SIPDIS



STATE FOR NEA/MAG; COMMERCE FOR ITA: NATE MASON, AND CLDP: MARC

TEJTEL, HISHAM ELKOUSTAF, AND MARAM TALAAT; ENERGY FOR GINA

ERICKSON; PARIS AND LONDON FOR NEA WATCHERS



E.O. 12958: DECL: 6/17/2019

TAGS: ECON, PHUM, PGOV, MEPI, PREL, EAID, LY

SUBJECT: HERE COMES THE JUDGE: LIBYAN JUDGES RESPOND POSITIVELY TO

AMERICAN JUDGE'S WORKSHOP ON ARBITRATION



REF: 07 TRIPOLI 707



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CLASSIFIED BY: Gene A. Cretz, Ambassador, U.S. Embassy -

Tripoli, U.S. Dept of State.

REASON: 1.4 (b),(d)

1. (C ) Summary: Under the Department of Commerce's

Commercial Law Development Program (CLDP),a U.S. federal judge

conducted a workshop for 30 Libyan judges and attorneys on

international arbitration from June 3-4 in at the High Judicial

Institute in Tripoli. The program represents the first step in

a program to expose Libyan judges to international arbitration

best practices. Our Libyan interlocutors warmly welcomed the

judge on her first trip to Libya, asked her to return to Libya

for future programs and told Emboffs that the High Judicial

Institute could directly coordinate future training sessions

without working through the MFA or MinJustice equivalents.

Holding the workshop at the judicial institute provided a window

into Libya's otherwise largely opaque judicial system, and could

in the future afford a channel in which to address more

sensitive topics such as human rights and judicial reform. End

summary.



2. (C) Under the auspices of the CLDP, Judge Delissa Ridgway

(U.S. Court of International Trade) traveled to Libya May

30-June 4 to conduct a two-day workshop for Libyan judges and

state attorneys on international arbitration. Funded by the

Middle East Partnership Initiative (MEPI),the workshop

represents the first step in a program to expose Libyan judges

to international arbitration best practices, a topic the Libyan

General People's Committee for Justice (MOJ-equivalent) had

indicated was a priority. Proposed future activities include

connecting the judges to their counterparts in Tunisia, where

there is an arbitration center, and to judges and courts in the

U.S. Strengthening the Libyan judges' expertise in this area is

expected to contribute to the long-term improvement of the

commercial legal environment,creating better conditions for U.S.

companies operating in Libya.



3. (C) Before the arbitration workshop, the Embassy's main

point of contact for commercial law programming was the

International Cooperation Department at the GPC for Justice. In

three preparatory trips to Libya (between November 2008 and

February 2009),Commercial Law Development Program staff were

unable to meet with the Libyan body responsible for actually

training judges, the High Judicial Institute; however, once

Judge Ridgway arrived, a meeting was hastily arranged by the GPC

for Justice with the Chief Inspector of Judges, Juma Bouzaid,

and the Director of the High Judicial Institute, Dr. Nouredeen

Alakrmi. Bouzaid, who speaks fluent English, was curious about

the U.S. judicial system and asked a series of cogent questions

about immunity for judges, how U.S. judges are evaluated and how

the Supreme Court decides which cases to hear. He noted that in

Libya, judges (and state attorneys) have full immunity and that

the Supreme Court would (theoretically) hear any case that had

been appealed in a lower court. The Director of the High

Judicial Institute, Alakrmi, admitted he had no prior knowledge

of the CLDP workshop (reflecting the lack of coordination on the

GOL side),but said he would quickly arrange for the workshop to

take place over the next two days. He added that in Libya,

there is a great interest in learning more about the

"Anglo-Saxon" and U.S. judicial approaches. (Note: 75 Libyan

judges are currently undergoing training in the U.K. under a

GOL-funded program to teach them English for nine months, and to

then provide training in international law. End note.)



4. (C) On June 3, approximately 30 judges and state-attorneys

showed up for the first day of the workshop. The original

proposal from CLDP called for a smaller group of judges (around

20) from all over Libya, with a gender balance. The Embassy

also asked for a list of participants prior to the workshop in

order to tailor the sessions to their backgrounds and level of

experience; however, no list was provided in advance. The group

was also intended to include only judges; however, the institute

staff explained that in Libya state attorneys could be rotated

into positions as judges on an annual basis, so it would be

beneficial to include them in the workshop as well.

Approximately half the group were women and half men; most of

the judges were men. At the coffee break, one of the female

attorneys admitted to Econoff that she did not want to become a

judge because it would take up too much time, and she needed a

more regular schedule in order to take care of her family. Very

few of the participants spoke English - the justice ministry

provided an English-speaking employee to interpret, but since he

was not a trained interpreter the quality was spotty. (Note: In

the future, it may be useful to consider funding a professional

interpreter for similar USG-funded workshops. End note).



5. (C) The workshop comprised an overview of the U.S. judicial



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system and a presentation on international commercial

arbitration, with an emphasis on the concept that in

international commerce, the two parties are free to enter into a

contract as equals and the court's role is to enforce the

contract. The importance of predictability was stressed as a

key to attracting foreign investment; the role judges and

lawyers play in ensuring fair application of the law is

therefore important in creating the perception of a favorable

business environment. Questions from the Libyan participants

included how U.S. courts would deal with General Motors'

bankruptcy and when "public order" in a sovereign nation takes

precedence over a contract. Alakrmi, the director of the

judicial institute, commented that "judges must be brave" and

give greater consideration to international public policy than

to domestic politics. Concepts such as the sanctity of

contracts and the choice of law and forum were discussed. Even

though Libya is not yet a party to the New York Convention on

the recognition and enforcement of foreign arbitration awards,

Libyan judges said most of them were familiar with the

convention since five Arab countries are already parties to it.

The presentation was followed by practical exercises involving

real cases in order for the participants to actively discuss how

they would handle various cases - Judge Ridgway said she was

impressed by their level of participation and enthusiasm.



6. (C) During the week in Tripoli, the CLDP visitors were also

able to meet with members of the construction and energy

sectors. Shell's Country Manager admitted that his company

would "move heaven and earth to avoid litigation," particularly

in Libya. They viewed their relationship as being with "Libya,

Inc." and assess that going to arbitration could seriously that

relationship and their long-term investments. Noting that Shell

had gone through an arbitration case in Qatar, he said it had

taken many years for the company to get back on track there. He

noted that while Shell's contracts with the National Oil Company

are written under Libyan law, its contracts with international

oil service contractors are usually under U.K. law. He offered

that no one trusted the Libyan judiciary, which was less than

transparent in its decisions, especially after the saga of the

Bulgarian nurses accused of deliberately infecting Benghazi

children with the AIDS virus (see reftel). In Libya, it was

still the case that relationships and negotiations take

precedence over the legal system.



7. (C) By holding the workshop at the judicial institute, CLDP

and the Embassy gained a better understanding of the legal

education system in Libya. Only about 110 students (out of 500

applicants) a year are admitted to the institute. Successful

completion of the institute's curriculum is a requirement to

become a state attorney, which is the stepping-stone to a

judgeship. Before candidates are admitted to the institute,

they must study law for four years after graduating from high

school and then pass written and oral exams. The other

alternative is to enter a private law practice and work as a

trainee for two years before becoming a lawyer. The salary for

a government lawyer ranges between 500 and 1,000 dinars a month

(equivalent to USD 400-800 a month),whereas a private attorney

can earn approximately 3,000 dinars a month (USD 2,400) or more.





8. (C) Comment: The CLDP workshop on arbitration was a good

first step in forging a working relationship with the judicial

education system in Libyan. It also provided access to the

otherwise-opaque system of justice here. The judicial

institute's director welcomed Judge Ridgway to come back to

Libya and said the Embassy could be in direct contact with him

to discuss future cooperation projects. These could include the

travel of Libyan judges to the arbitration center in Tunis, as

well as a visit to the U.S. Court of International Trade. The

enthusiasm and candor of the director were a welcome relief from

the more cautious norm, and could help pave the way to broach

more sensitive topics such as human rights and judicial reform

in the context of future training programs. Experience has

shown that while we forge a new relationship with the judicial

institute, it will also be important to double-track future

projects with the Ministry of Justice. In addition, the source

of funding for this program (MEPI) was not discussed during this

visit; MEPI remains a neuralgic issue for conservative regime

elements, who regard it as a vehicle for regime change. Most of

the judges and attorneys who participated in the workshop had

little or no previous direct experience with the U.S. and

therefore represented a new target audience for Embassy

outreach. End comment.

CRETZ